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3d 1156
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be
cited only in related cases.
Appeal from the United States District Court for the District of Puerto
Rico [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Lydia Lizarribar-Masini, by Appointment of the Court, for appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with whom
Guillermo Gil, United States Attorney, and Rosa Emilia RodriguezVelez, Executive Assistant United States Attorney, were on brief for
appellee.
Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and
STAHL, Circuit Judge.
PER CURIAM.
BACKGROUND
The X-ray examination revealed "some shadow areas" shaped like packages in
the stereo, so O'Gorman decided to search the stereo box and its contents.
When lifting the stereo out of the box, O'Gorman noticed that it was unusually
heavy, and that the view inside the stereo's back panel was blocked by black
electrical tape. Using some keys, O'Gorman touched the area and felt what she
believed to be a package moving. She then decided to remove the stereo's back
panel. During this search, O'Gorman noticed that Hopkins seemed to become
increasingly nervous.
As she was pulling off the stereo's back panel, O'Gorman noticed that the
attaching screws were scratched, as if someone had already tried to remove
them. As she pulled the back panel apart, O'Gorman could see a package inside
the stereo. When the panel was removed, O'Gorman found five rectangular
packages wrapped in electrical tape. The packages, it turned out, contained
approximately 5.7 kilograms of cocaine.
ANALYSIS
Hopkins appeals her conviction on the ground that the evidence was
insufficient to convict her of the charges. Generally, our standard of review for
sufficiency of the evidence appeals requires us to review the record to
determine whether the evidence and reasonable inferences therefrom, taken as a
whole and in the light most favorable to the prosecution, would allow a rational
jury to determine beyond a reasonable doubt that the defendant was guilty as
charged. United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993). It is
settled law, however, that when a defendant moves for judgment of acquittal at
the end of the prosecution's case, but then fails to renew the motion after
presenting her own case, she waives the original motion. United States v.
Castro-Lara, 970 F.2d 976, 980 (1st Cir. 1992). Because the motion is deemed
waived, then, the defendant forfeits the benefit of the customary standard of
review, "thereby negating any claim of evidentiary insufficiency unless
affirming the conviction would work a 'clear and gross injustice'." Id. at 980 n.2
(quoting United States v. Cheung, 836 F.2d 729, 730 n.1 (1st Cir. 1988) (per
curiam)).
Keeping this standard in mind, our reading of the record does not reveal any
such injustice. On the contrary, it appears that, even if we were to apply the
customary standard of review, Hopkins' conviction is amply supported by
admissible evidence, particularly the testimony of Inspector O'Gorman.
10
B. Prosecutorial Misconduct
11
11
12
13
At counsel's request, the court granted the defense time, until after the lunch
recess, to either locate another witness to testify or to decide whether counsel
would take the stand and testify about the salesperson's prior inconsistent
statements. After the lunch recess, however, defense counsel had apparently
abandoned the matter, and called no witnesses regarding the salesperson's
statements or the impeachment document's information.
14
Hopkins now claims on appeal that the government's use of the impeachment
document constituted prosecutorial misconduct, and prejudiced her ability to
obtain a fair trial. Because no objections to the cross-examination or the use of
the impeachment document were made during trial, however, our standard of
review is for "plain error." United States v. Montas, 41 F.3d 775, 779 (1st Cir.
1994); United States v. Rosales, 19 F.3d 763, 765 (1st Cir. 1994); see Fed. R.
Crim. P. 52(b). Under this standard, we will reverse only if the error seriously
affected the fairness, integrity, or public reputation of the judicial proceedings,
Rosales, 19 F.3d at 765, or where a miscarriage of justice has occurred. United
States v. Olivio-Infante, 938 F.2d 1406, 1411 (1st Cir. 1991).
15
We find it difficult to discern any error here, much less that rising to the level
of "plain error." Hopkins, somewhat cryptically, claims that the government
unfairly withheld information from the defense in violation of the discovery
rule, Fed. R. Crim. P. 16(a)(1)(A), which requires the government to provide
the defense with "the substance of any oral statement which the government
intends to offer in evidence at the trial .... " (emphasis added). The problem
with this argument, however, is that the government did not offer the document
or its contents into evidence; indeed, its use of the document was spurred solely
by Hopkins' testimony on the stand, the substance of which the government
could not have anticipated in exact detail. We have held that although Rule 16
encompasses statements that the government believes it will likely introduce in
rebuttal as well as in its case-in-chief, the rule does not and cannot encompass
statements that the government, at the outset, does not know about, has no
reason to find out about or take note of, and would be unlikely to introduce at
trial. United States v. Ferrer-Cruz, 899 F.2d 135, 140 (1st Cir. 1990). Similarly,
the government cannot be required to anticipate every possible defense, assume
what the defendant's trial testimony may be, and then furnish the defense with
otherwise irrelevant material that might be used for impeachment. Id. (quoting
United States v. Gleason, 616 F.2d 2, 25 (2d Cir. 1979), cert. denied, 444 U.S.
1082 (1980), and cert. denied sub nom. Carter v. United States, 445 U.S. 931
(1980)). Because the government only received the information that morning,2
provided counsel with a copy of the document at trial, and did not introduce the
document into evidence but only used it to impeach Hopkins, we find that the
government did not violate Rule 16's discovery requirements.
16
Finally, we do not agree with Hopkins' contentions that the use of the document
to impeach her was unfairly prejudicial. We do not see how the use of the
document could have inflamed or misled the jury. In fact, if the document had
been introduced into evidence, it may have actually aided Hopkins' defense, as
it would have provided the jury with an alternative theory about who may have
purchased the stereo. In any event, the document was only used to impeach
Hopkins' testimony and was not offered as evidence. We simply do not see any
error here.3
CONCLUSION
17
The government explains that it had just received a facsimile transmission from
the St. Maartens' police force, reporting this information, that very morning
use of the document in its own case seems to be a tactical decision, rather than a
result of unfair surprise. Indeed, defense counsel never requested a continuance
or filed an objection to the document, which it would have been entitled to do
3
As the government points out in its brief, even if the government's use of the
document were error, it could only be termed harmless error in light of the
abundance of evidence of Hopkins' culpability, and certainly would not rise to
the level of error required for reversal